from the thank-you-perfect-10 dept

We've noted in the past that Perfect 10's myriad lawsuits alleging copyright infringement against all sorts of companies haven't resulted in many victories for the company, but have established a set of case law rulings that have been very helpful in defining clear exceptions within copyright law, which have been quite useful in other cases. The only really questionable Perfect 10 ruling I can think of is the one we just mentioned earlier this week, in which a court seemed to get confused concerning the difference between direct and indirect copyright infringement, but I'm hopeful that this will get sorted out soon enough.

However in a different Perfect 10 case, a part of its long and almost entirely failed campaign against Google, we have a fantastic appeals court (9th Circuit) ruling that could be quite a big deal, in reversing previous precedent and noting that a showing of copyright infringement does not automatically prove "irreparable harm," and that it also should not mean an automatic preliminary injunction is applied in such cases (thanks to Eric Goldman for pointing us to the ruling).

The ruling is significant for a number of reasons. Obviously, for a court to change its position on things, it needs a good reason to do so and, here, the court relies on the very important Supreme Court ruling in the MercExchange case, in which it noted that defaulting to a preliminary injunction in patent cases did not make sense. Instead, a court should consider a variety of factors and whether or not there was real harm that required an injunction. In this case, the court has now applied the same reasoning to copyright law for the first time. This isn't entirely surprising, since the MercExchange ruling by the Supreme Court actually relied somewhat on copyright law itself, but there had not yet been a clear ruling on whether the MercExchange decision applied to copyright. We did note, last year, that the Second Circuit appeals court had raised the question of whether or not MercExchange applied to copyright, and had sent the case back to a lower court to consider. In this case, however, we have a firm ruling (which also acknowledges that Second Circuit ruling) that MercExchange also applies to copyright:

We agree with the Second Circuit. As explained in
eBay, the language of § 502(a) is permissive and evokes traditional
equitable principles: “[T]he Copyright Act provides
that courts ‘may’ grant injunctive relief ‘on such terms as
[they] may deem reasonable to prevent or restrain infringement
of a copyright.’ ” 547 U.S. at 392 (quoting 17 U.S.C.
§ 502(a)). Nothing in the statute indicates congressional intent
to authorize a “major departure” from “the traditional four-factor
framework that governs the award of injunctive relief,”
id. at 391, 394, or to undermine the equitable principle that
such relief is an “extraordinary and drastic remedy” that “is
never awarded as of right,” Munaf v. Green, 553 U.S. 674,
689-90 (2008) (internal quotation marks omitted). We therefore
conclude that the propriety of injunctive relief in cases
arising under the Copyright Act must be evaluated on a case-by-
case basis in accord with traditional equitable principles
and without the aid of presumptions or a “thumb on the scale”
in favor of issuing such relief.

In sum, we conclude that our longstanding rule that a
showing of a reasonable likelihood of success on the merits
in a copyright infringement claim raises a presumption of
irreparable harm is clearly irreconcilable with the reasoning of the Court’s decision
in eBay and has therefore been effectively overruled.

In other words, just showing copyright infringement no longer means a presumption of irreparable harm (in the Ninth Circuit, at least). Since many of us have argued for years that infringement does not automatically lead to harm, this ruling is big news.

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No more "presumption of irreparable harm"?

I wouldn't call this "huge", since the court is only admitting to previous stupid /presumption/ after it's gotten too tangled for any stretch of logic. Only says they won't routinely hand down injunctions. But if that's all you get, then trumpet it.

really? Watch how fast concurring opinions from other districts pop up

considering the ridiculously high amount of copyright infringement cases going around expect this to be noticed by judges outside of the 9th circuit, even if it doesn't have standing in other districts.

Re: Re: Ninth Circuit

Re: Ninth Circuit

Or...not. The Ninth has taken a pretty seriously big-content-owner-centric stance lately, and this is a nice break from that. So, while I agree that the Ninth isn't exactly the most, um, respected circuit in the place, it's a great change in direction. Oh, and couple that with the fact that a lot of content owners are based at least in part in the Ninth Circuit, and you've got a pretty nice piece of paper here.

Re: But what about the trolls?

It's a significant ruling. My read is that it applies to not only copyright cases but also trademark and patent cases. I don't know that it's "huge," but I understand the need from "your side" to get hyperbolic about anything that might possibly be construed as a "victory." To me, it's just another evolution in the ever-changing universe of intellectual property. I don't have the same myopic problem that you do that it's only "good" if it comports with my personal world view.

Re: Re: But what about the trolls?

Which "world view" are you talking about, as a user or a creator? Copyright for most people at this point is beyond ridiculous! The few who benefit much at all at this point are the lawyers, and the corporate copyright holders who pay them.

Re: Re: Re: But what about the trolls?

World view just means whatever you personally think is the better answer. I read lots of decisions, some of which I agree with and some of which I don't. I don't consider the ones I agree with to be huge victories any more than I consider the ones I disagree with to be huge defeats. All this ruling is doing is applying recent Supreme Court precedent to the issue of presumed harm in intellectual property preliminary injunction analysis. Rather than presume harm, the plaintiff will have to show harm. I don't think it's a huge deal, and I'm sure preliminary injunctions will still issue as a matter of course.

But hey, if you guys want to pretend it's HUGE, then go at it. I know how desperately you guys need a victory. Mike especially. He's been grasping at straws and strawmen so much recently, I'm happy something like this makes him feel so good.

Re: Re: Re: Re: But what about the trolls?

That is a ruling that isn't likely to stand up.

The reason is pretty simple: The copyright law provides for a minimum and maximum amount for infringers. This would supplant the standard system, because there is an assumption of some loss, no matter what. If you are found guilty of copyright violation, there is a minimum amount. There is no choice for the judge to award 1 cent, as an example.

Given that the copyright law is written in a manner that specifically does not reference the other standards, and in fact appears to have it's own standards means that the judge very likely got it wrong, and will be overturned on appeal.

I agree that Mike is working pretty hard to find "victories" right now, considering that the strong push from the rights holders and governments in many countries are making the Tardian paradise into a potential hell. It seems quite likely that things will never be as free as they once were.

Re: Re: Re: Re: Re: Re: But what about the trolls?

You: "Presumption of harm in preliminary injunctions has nothing to do with statutory damages awarded after a guilty ruling."

Me: Copyright law has no real requirement for presumption of harm, it is a simple "did they or did they not" question, nothing more. You don't have to presume harm to get past the preliminary stages, and being a civil matter, you only would have to show reasonably that it could have happened to move forward. This court punted it badly, and they will get reversed.

You: "What does this blog have to do with Doctor Who?"

me: Nothing, Tard.

You: "So you're rejoicing at the loss of public freedoms."

me: No, I am rejoicing in the return towards balance between absolute freedom and personal rights. The only "your freedom stops at my nose" thing. The balance has been grossly distorted towards the Tardian mentality, but now it is swinging back the other way (and Mike is pissed!).

Re: Re: Re: Re: Re: Re: Re: But what about the trolls?

Re: Re: Re: Re: Re: Re: Re: But what about the trolls?

Copyright law has no real requirement for presumption of harm, it is a simple "did they or did they not" question, nothing more.

That is, of course, completely untrue. The amount of harm that is done is a factor in many different parts of copyright law (e.g. fair use, constitutional limits on damage awards, etc).

In the case of preliminary injunctions, courts have always balanced the harm between parties when deciding whether to grant the injunctions - and, furthermore, had a requirement that the injunction ultimately benefits the public good. That's why they're often not granted, even when there's a likelihood of infringement of some kind.

Nothing, Tard.

Oh, goody, you're too stupid to do anything other than make personal attacks. How lovely.

No, I am rejoicing in the return towards balance between absolute freedom and personal rights.

Copyright is not a "personal right." It is a public right. It's not there to benefit copyright holders, it's there to benefit the general public. If the general public does not benefit from it, they can change it or eliminate it at will - unlike, say, anything in the Bill of Rights.

Perhaps instead of cheering on the loss of public freedom, you should thank the public (including the "freetards") for allowing you to have your copyright in the first place.

Re: Re: Re: Re: Re: But what about the trolls?

Actually, douche, the Copyright Act does NOT provide any minimum or maximum penalty for infringers--that's only if the plaintiff is seeking statutory damages, which, if you were to think for a fucking second, means damages set by statute. There are, you might be surprised to know, OTHER damages measures as well--like ACTUAL DAMAGES, which often are measured in terms of lost profits. The statutory ones are great for small entities, but for larger entities the actual damages are often what's measured--leading to verdicts of millions of dollars for downloading a single movie, just as an example.

Please hold off on the education until you get some for yourself. The only thing worse than someone who spreads wrong information is someone who does it with conviction.

Re: Re: Re: Re: Re: But what about the trolls?

>> Given that the copyright law is written in a manner that specifically does not reference the other standards, and in fact appears to have it's own standards means that the judge very likely got it wrong, and will be overturned on appeal.

Is there any law in the books that specifically creates its own standard in some area and consequently "references" every other possible standard which will apply?

The Court appears to disagree, and I think they point to "may .. on such terms as it may deem reasonable".

"We agree with the Second Circuit. As explained in eBay, the language of § 502(a) is permissive and evokes traditional equitable principles..."

You will probably have to argue a little better (with more specifics) that the "traditional four-factor framework" does not apply for copyright.